Determining Whether a Covenant Runs with the Land

A person who makes a covenant to another is bound by her promise, and the other person can enforce it in court. But if someone else seeks to enforce the covenant, or if someone seeks to enforce the covenant against someone other than the original covenantor, you have to decide whether the covenant applies to those people who weren’t parties to the covenant.

Someone other than the original party can enforce the covenant against a successor to the original covenantor if the following are true:

The covenant touches and concerns the original party’s land, meaning the performance of the covenant somehow affects the land.

If a successor seeks to enforce the covenant, the original parties intended the covenant to be enforceable by successive owners of the benefitted land. If someone seeks to enforce the covenant against a successor to the original party, the original parties must have intended the covenant to be enforceable against successive owners of the original covenantor’s land.

The original parties had horizontal privity (they created the covenant when one of the parties was transferring one of the subject properties to the other, or they made the covenant related to a leasehold or easement), and the successor has vertical privity with the original party whose position she is taking over (she succeeded to the original party’s estate in some or all of her land); or, alternatively, the person against whom the covenant is to be enforced has notice of the covenant right belonging to the enforcing party.